Before Holly Boltjes opened her online cupcake business, she checked with regulators to make sure it was legal to use alcohol in her recipes.

After all, that was the business model for Intoxibakes.

Sioux Falls city officials signed off, and so did the South Dakota Department of Revenue.

Intoxibakes opened in November, and the business did as promised. It made cupcakes flavored with alcohol at a custom bakery in Parker. It delivered those cupcakes to Sioux Falls area residents who were hungry for booze-flavored desserts.

Then, government officials backtracked. Boltjes got a note from a Sioux Falls licenser this week indicating her fledgling business was breaking the law.

“I’m not quite sure what changed,” Boltjes said.

The rules seem clear to Jamie Palmer, the city employee who notified Boltjes of the violation and said cooking cupcakes with alcohol is a Class 2 misdemeanor.

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The hang-up isn’t South Dakota’s liquor laws. Instead, Intoxibakes is in violation of South Dakota’s rules for food preparation, which prohibit any confectionary made with alcohol, Palmer said. The law falls within the state’s so-called “adulterated" food statutes, designed to stop producers from adding harmful substances to food.

The rule mirrors requirements set by the U.S. Food and Drug Administration designed to protect consumers from food poisoning or ingesting dangerous substances. Typically, an adulterated food item has been contaminated with an element as dangerous as E. coli, said Bill Marler, a food safety lawyer based in Seattle.

The Intoxibakes logo(Photo: Contributed by Intoxibakes)

“Or rat poison got put in it by mistake, or metal shavings, or plastic,” Marler said. “That’s the way that typically most people in the field would look at it.”

Alcohol is generally considered a “safe” food product, Marler said.

Intoxibakes is hardly the first Sioux Falls eatery to prepare desserts with alcohol. Vanilla extract is required to contain at least 35 percent alcohol under federal law and is a common ingredient in baked goods.

Cupcakes made by Intoxibakes.(Photo: Contributed by Intoxibakes)

Intoxibakes does add trace amounts of alcohol to its frosting.

However, most of the recipes only use about two teaspoons of alcohol per dozen cupcakes, Boltjes said.

"You're not getting any measurable amount of alcohol," Boltjes said. "It’s just for flavor."

After spending most of last year perfecting the recipes with her daughter and daughter-in-law, who are also co-owners, Boltjes was careful to make sure the sale of boozy cupcakes was lawful and wouldn’t require a liquor license.

“We called every agency,” Boltjes said.

She and her family then set an age restriction on sales, refusing to sell to any customer under 21 years old.

“We were never told we had to,” Boltjes said.

There’s also the name, Intoxibakes, an obvious reference to the ingredient in question. And there’s the company’s straightforward slogan: "We create yummy baked goods infused with alcohol.”

When asked how state law would be enforced, Palmer said it wasn’t up to her and she wasn’t sure which city department would oversee the law restricting alcohol use in confectionary.

All she did was send Boltjes a copy of the statutes, Palmer said.

“This is out of my field because it has to do with food,” Palmer said.

A representative for the South Dakota Department of Revenue said the office does get complaints about food prepared with alcohol, but much like Palmer’s department, they only oversee liquor licensing.

Marler, who represented victims in the 1993 E. coli outbreak caused by Jack-in-the-Box beef patties, said it would be hard to describe alcohol-infused cupcakes as “adulterated,” especially if customers know what they’re getting.

He called the city’s interpretation “incredibly broad.”

“My view is, there are certainly way more important things for the FDA to concern themselves with than whether or not there’s a little bit of alcohol in a brownie or a cupcake,” Marler said.

Meanwhile, Intoxibakes is in a holding pattern.

Boltjes shut down the website until she and her family learn more about the law.

“Obviously, we’re a little upset. We want to continue with the business,” Boltjes said. “We’re also optimistic that we’ll be able to work something out with the city.”

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